Studer v. Plumlee

Me. Justice Williams delivered the opinion of the Court. This action was brought in the court below by Plumlee, as plaintiff, against appellant Studer to recover damages incident to a collision with an automobile of the latter at the intersection of Sixth and Market streets in the city of Chattanooga. The trial judge overruled a motion for peremptory instruction interposed by defendant Studer, and the jury returned a verdict in favor of Plumlee, which was sustained by the trial judge and the court of civil appeals. An assignment of error in this court under the petition for certiorari is that the motion for peremptory instruction should haye been sustained, on the ground that Plumlee himself testified that as he rode his horse down Sixth street in a running. walk, the horse’s speed being four or five miles an hour, he slightly checked on reaching Market street, with a view to swerving into the further or east side of Market street, but did not stop, and proceeded without looking to the right or left, and that when about midway Market street he discovered Studer’s automobile about fifteen feet away, coming towards him at about the speed of ten to fifteen miles an hour. Plumlee further testified that he was noticing where he was going, “just looking in front of me,” and did not see the automobile until, it was within ten or fifteen feet of him. The argument in behalf of appellant is that Plumlee was guilty of contributory negligence as a [519] matter of law in failing to look np and down Market street, a much, traveled thoroughfare, before attempting to ride his horse across. The rule that one about to cross a railroad track, in the nse of a highway, must stop, look and listen does not apply to a traveler thns coming out of an intersecting street into a street upon which automobiles are customarily run, which machines are capable of safe operation and are not inherently dangerous instrumentalities. “He is not required, as a matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care, and approach the crossing with his vehicle under control.” Baker v. Close, 204 N. Y., 92, 97 N. E., 501, 38 L. R. A. (N. S.), 487, and notes; Millsaps v. Brogdon, 97 Ark., 469, 134 S. W., 632, 32 L. R. A. (N. S.), 1177; Tiffany v. Drummond, 168 Fed., 47, 93 C. C. A., 469; annotations to Minor v. Stevens, 42 L. R. A. (N. S.), 1182; and Deputy v. Kimmell, 51 L. R. A. (N. S.), 997. Where the measure of care is ordinary or reasonable care, and the degree of that care thus varies with the circumstances, the question of contributory negligence is one for the jury. Railway v. Riddick, 110 Tenn., 227, 75 S. W., 924; Railroad v. Wade, 127 Tenn., 154; 153 S. W., 1120, Ann. Cass., 1914B, 1020; Leach v. Asman, 172 S. W., 303. The court of civil appeals so held. Affirmed.